The LandLord Advocate Nov 2012

We hope this newsletter finds you safe and sound and in good health. We also hope you were able to avoid much of what the “Frankenstorm” had to offer. However, if you are like many of your neighbors, much of your effort over the past week has been spent in recovery mode, pumping water from where it should not be, removing trees and limbs relocated by the winds, and perhaps, digging out from under the sand and rubble that covered your world. First, and foremost, we are glad you are safe. Second, there is a light at the end of the tunnel. The fact that you are able to pursue a rigorous recovery is, in itself, a good thing.

While healing from storm damage is typically looked at as a setback, it may also be an opportunity. That’s right. Rebuilding from “Superstorm Sandy” may actually be a chance to make things better for the future. In addition to the physical rebuilding that may be necessary; you now have a unique chance to assess your emergency action plans in their full grandeur.

Luckily, we rarely have such a natural weather event to put all of disaster plans to the test. However, this time, we did. And now, once your cleanup is complete, you have an opportunity (an opportunity that we hope you never have again) to assess the effectiveness of those plans.

Reflect on the situation from start to finish. First, evaluate your pre-storm preparations and how they played out:

• Did you have the right equipment, people, and procedures at the ready for the storm’s arrival?
• Were there unsecured items in your community that became hazardous to you and your residents?
• Were there secured items that broke free due to inadequate tie-downs?

Finally, look at the handling of the aftermath:

• Were personnel properly trained to handle the contingencies?
• Were you able to address resident issues and concerns in a timely fashion?
• Did your legal plan account for claims and concerns your tenants raised in the aftermath of the storm? I overheard a post-storm conversation of a friend who was talking to a landlord on behalf of one of his employees: “You can’t charge him rent. There’s no power and no heat,” was his statement to the landlord. Are you facing these types of queries? Are you ready to address them?

We have often heard the expression “That which does not kill us only makes us stronger.” The lessons learned from Sandy may be painful and stressful, but we have been afforded a unique opportunity to embrace them in order to grow and improve.

Right now, you may still be in the middle of your recovery. If so, we wish you the best of success and a complete recovery. If there is anything we at the Landlord Law Firm can assist you with, please call on us. It won’t be long until your efforts are a thing of the past. It is then, that you can really make an impact on the future.

Stay safe. Stay strong. Get better.

Quick Tip:

Consider your lease in the assessment of “Superstorm Sandy”.

Over the last several months, we have advised you to read, evaluate, and implement the provisions of your commercial and residential leases. In this newsletter’s lead article, we note the opportunity to assess your emergency action plans in the wake of “Superstorm Sandy”.

Tying that article to our theme of lease review, ask yourself this question during that operational assessment: Did the lease help or hinder efforts to prepare for, experience, and respond to the storm? Here are some examples of subject areas that may be worthy of review:

• First, consider how the lease could have helped you deal with tenants and the physical plant to prepare for, and later address, the storm’s impact. For example, you may want to review the lease’s notice requirements for unit access, and decide whether (or how) the government’s declaration of a state of emergency may affect that provision.
• Second, evaluate whether the lease adequately communicates to the tenant the limits on the landlord’s responsibility for storm-related damage to the unit and/or their possessions. For example, do you require tenants to purchase renter’s insurance? Short of that, you may want to add a lease clause under which the tenant agrees that you are not responsible for their personal possessions.
• Third, assess whether the lease assists you in identifying storm-related property damage to the physical structure and systems. For example, many leases state that tenants take the premises “as is” and obligates them to submit work orders should anything go wrong with the structure or systems for which the landlord is responsible. However, during or after a storm, you may want the tenants to have an affirmative obligation to inform you about any such damage, rather than leave it discretionary.

Contact your landlord attorney with questions about what your lease can (or cannot) include, and how you can structure or edit lease provisions that would assist you before, during, and after future storms or other natural disasters.

Quick Tip:

Meet our Operations “Operator” – Melissa Bennett.

This month, we expand our introduction of the Landlord Law Firm team by profiling Melissa Bennett, our Operations “Operator”…

Leaving an extended career in health care, Melissa joined our firm more than eight years ago, looking for change and opportunity. We immediately gave her the change. She, through hard work and dedication, created the opportunity for herself.

Beginning her career at the Landlord Law Firm as a secretary, Melissa quickly expanded her knowledge and earned a spot as a real estate paralegal. When opportunity further presented itself, she was promoted into her current spot in the Operations Department where she is responsible for a plethora of duties – from Accounting, to vendor relations, to Human Resources.

However, there is a hidden side to this Operations Operator. When not at LLF, you can usually find Melissa busy with one of her two other loves – shopping and little league.

• First, shopping. While we won’t dwell too long on this side of Melissa, we feel she has raised the bar on “shopping as a sport.” In fact, most malls have set aside personal parking spots just for her. Enough said…
• Second, little league. Melissa, a CT native, is the proud mother of two. When not shopping, she can usually be found leading the cheers at her son’s little league baseball games. Considering his prowess for the sport, Melissa gets to do that more than most. With her, you’ll also find the newest, little addition to her family – happily bundled up warmly as they cheer on her big brother.

When planning a temporary escape from the life of baseballs and shopping bags, Melissa and her family typically choose Florida’s sunny coast, where they visit with family and friends. Truth be told, she’s probably shopping down there too…

Quick Tip:

Client satisfaction is key to stopping case.

Our landlord clients often ask whether they can or should stop a summary process (eviction) case at various stages due to either:

• The tenant’s payment (or promise to pay) in a nonpayment of rent case, or
• A claimed move-out by the tenant or some other event (like the tenant’s arrest) when the tenant is on the verge of eviction.

Our response is to always ask if the client is satisfied. If so, the case can stop, if the client so desires. If not, we recommend against stopping the case. Let’s look at each scenario in turn for clarification.
First, imagine a nonpayment of rent case in which the tenant owes money, but then makes a payment, or promises to pay shortly. Should the case stop? When faced with this situation, we recommend our client evaluate whether the tenant has paid the entire arrearage, attorney’s fees, and costs in full, or will in a (very) short timeframe. If the account balance has been satisfied (paid), then the possibility of stopping the case may make sense.
In the second scenario, the case has proceeded to the eviction stage and the tenant says that they moved-out, or a neighbor says the same thing. Alternatively, you learn that the tenant has been arrested for murder with no bail set and apparently no prospect of return (this actually happened recently). Should the case stop? In both instances, we recommend that the client determine whether the keys have been returned or the execution has been satisfied with the marshal (an eviction has happened, or the marshal has scheduled it and determined that the tenant has vacated and removed all possessions from the unit). If so, then the case may be eligible for stopping.
In each case, if the client is not satisfied, the case should not stop. As we discussed in a December 2009 Quick Tip about improving communication with your attorney, remember that the central component of each conversation should be what you want to accomplish. This is also an excellent guiding principle in deciding how you want to proceed with a summary process case.
Contact your landlord attorney if you are unclear on your options, rights, or obligations in a given scenario with a summary process case, so that you can make the best decision for you and your property.

DISCLAIMER:

The reading of this newsletter does not form an attorney-client relationship. The contents of this newsletter are for informational purposes only and do not constitute legal advice. Nothing in this newsletter is intended to imply or predict the outcome of any legal matter that you may be considering or be involved in. The Landlord Law Firm makes no warranties of any kind regarding the information contained in this newsletter.